Headstream v. Mangum
| Decision Date | 04 October 1943 |
| Docket Number | No. 5569.,5569. |
| Citation | 174 S.W.2d 496 |
| Parties | HEADSTREAM v. MANGUM. |
| Court | Texas Court of Appeals |
Appeal from Terry County Court; C. L. Lincoln, Judge.
Suit by W. R. Mangum against Rex Headstream for damages to wagon and team resulting from a collision with defendant's automobile. From a judgment for the plaintiff in the justice court, the defendant appealed to the county court, where the case was tried before a jury and resulted in a verdict and judgment for plaintiff, and from that judgment the defendant appeals.
Reversed and remanded.
R. L. Graves and H. B. Virgil Crawford, both of Brownfield, for appellant.
Lawrence L. Barber, of Seagraves, for appellee.
W. R. Mangum, appellee, filed this suit in the Justice Court of Precinct No. 1 of Terry County, alleging damages in the sum of $185 against Rex Headstream, appellant. From a judgment for appellee in the sum of $125 in justice court an appeal was duly perfected to the County Court of Terry County where the case was tried before a jury and resulted in a verdict and judgment for appellee in the sum of $125, from which judgment an appeal was duly perfected to this court.
This case has been before this court twice before as reported in 129 S.W.2d 1155 and 149 S.W.2d 625, but we are not concerned here with the matters involved in the former appeals, neither of which involved the merits of the case.
The record discloses that the suit grew out of a collision between a wagon and team driven by appellee upon a paved highway soon after dark at night and an automobile driven in the opposite direction on said highway by appellant when appellee's mare hitched to the wagon on the side next to the said automobile was killed and certain damages were done to the wagon and harness owned by appellee.
Appellee alleged certain acts of negligence on the part of appellant as the proximate cause of the injuries complained of and appellant answered with a general denial and alleged certain acts of contributory negligence on the part of appellee, one of which was that appellee was driving his team and wagon upon State Highway No. 51 near the center of the highway after dark and in violation of the criminal laws of the State of Texas in that he did not have his wagon equipped with lights or reflectors as the law provides.
In response to special issues submitted by the trial court the jury found that appellant was operating his automobile at the time and place of the collision in a negligent manner which proximately caused the injuries of which appellee complained; that appellee was not operating his team and wagon in a negligent manner at the time and place of the collision; that the collision was not unavoidable and they awarded damages to appellee in the sum of $125.
Appellant complains because the trial court submitted special issue No. 4A to the jury and complains further about the negative answer the jury gave to said special issue No. 4A and further complains that the jury gave no answer to special issue No. 4B without a negative answer to which appellee was not entitled to recover anything.
Special issues Nos. 4A and 4B complained of are as follows, to-wit:
No answer given by jury.
Appellee did not file a brief with this court and we have only the advantages of appellant's brief which we may accept as reflecting correctly the facts and record in the case since they are not challenged by appellee. Rule 419, Texas Rules of Civil Procedure; Rogers v. Dickson, Tex Civ.App., 157 S.W.2d 404; Heckert v. American Casualty Co., Tex.Civ.App., 129 S.W.2d 424 and Texas Jurisprudence Supplement (1942) Appeal and Error Civil Cases, section 650, page 101.
Appellant contends that the trial court erred in the submission of special issue No. 4A to the jury since the uncontradicted evidence shows that appellee was driving his team and wagon upon public highway No. 51 after dark without having his wagon equipped with lights or reflectors as required by law and that because of such failure it was the duty of the trial court to charge the jury that appellee was guilty of negligence per se.
The record discloses that the collision occurred on October 31, 1935 on Texas State Highway No. 51 and all the witnesses testified that it occurred after dark, some of them fixing the hour as late as eight o'clock P. M. Appellee testified in part as follows: ...
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